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Novell Moves to Dismiss With Prejudice
Tuesday, August 10 2004 @ 03:37 PM EDT

Here is Novell's Motion to Dismiss, the Memorandum in Support of the Motion to Dismiss, the Declaration of Bruce Lowry and the Declaration of David E. Melaugh, plus their Motion for Leave to File an Overlength Memorandum and the Order granting them leave. Lots to read, but the first two may take a few more minutes to show up on the server.

I suggest you start with the declarations and then the ExParte Motion to File an Overlength Memorandum, and then the Motion to Dismiss and then the Memorandum. And I wrote that before I knew that the Motion and Memorandum would turn out to be the last to show up.

What I see is that they are telling the judge several things:

  • SCO didn't tell the judge the whole story, they say, but rather they quoted "selectively and misleadingly", to "drum up any basis for these specious allegations." Hence Novell takes on the task of showing the complete documents, exhibits galore, to show the judge the context and the complete articles and press releases and letters that they say SCO cherry picked a few quotes and then used misleadingly. That's why they needed to get permission to file an overlength memorandum, so as to detail each item SCO misrepresents.

    Take a look at the Melaugh declaration, for example. He tells the judge that he did a LexisNexis news search for the words IBM and SCO and got 2,845 results, starting with the month and year that SCO filed the lawsuit. Next, he narrowed it down by choosing as cutoff date the first Novell public statement, and he still got 317 articles. They present the judge with beginning chunks of the first 50 of each search, asking that he take judicial note of the huge media frenzy around SCO. Even the court itself lists it as a "high profile" case on the Court's website. This is the backdrop to Novell's statements. They also attach SCO's complaint in the Red Hat case and its opening brief in support of its motion to dismiss the Red Hat case, and both the original complaint and the amended complaint in the IBM case, as well as their Answer to IBM's Counterclaims. They throw in letters we have read on Novell's site, and some press releases for good measure, but in each case they cross reference them with SCO's Amended Complaint. See, Your Honor, they are saying, how they didn't tell you the straight, complete story?

  • The circumstances under which Novell spoke out form the backdrop to their Motion to Dismiss, and the Court itself said that the case presents a significant copyright issue, yet SCO continues to assert it and only it has undisputed copyright rights as if it were an unassailable fact. Are they not giving what you wrote full weight, Your Honor? is the implication. You said in your ruling that for a statement to be malicious, it has to be knowingly false. Obviously, SCO can't "surmount these hurdles."

  • This is a public dispute, and it was SCO who made it so not only by suing IBM, but by sending the 1500 threatening letters and sounding off in the media. "SCO has done everything it can to stoke that firestorm." Additionally, it has started or is defending against "at least six lawsuits before five judges in four states and two countries."Under those circumstances, Novell has the legal right to speak without being threatened with litigation for doing so. It's not malice if both parties sincerely believe they have valid rights and each asserts a claim. Without Novell making such a claim while knowing it was false, which obviously isn't the case in light of the judge's own order, SCO is a dead duck. As a matter of law, its Amended Complaint should be dismissed. (That means there is no issue of fact for a jury to ponder. Matters of law are the judge's job.)

  • SCO didn't request declaratory judgment that it owns the UNIX copyrights, only pressing a slander to title claim. That's a hint to the judge that SCO may not be so sure itself who owns the copyrights. Novell then wisely quotes from the Judge himself. Could there ever be better authority? This judge said there are "substantial Section 204(a) issues" with the APA and the Amendment 2, and that "the agreements raise substantial doubt" as to whether the APA as amended qualifies as a copyright transfer writing and doubt as to "whether there was any intent to transfer copyrights".

  • On damages, the only thing SCO added was that other parties in other lawsuits with SCO have relied on Novell's assertions regarding copyrights belonging to them, to SCO's alleged detriment.

The Motion to Dismiss is short and sweet: SCO's complaint, they say, should be denied for failure to state a claim upon which relief may be granted. That's legalese for: "This case is ridiculous." SCO claims Novell slandered them, but they can't prevail because:

  • Novell has a privilege to publicly assert a rival claim to the UNIX copyrights (meaning, it's not slander if it's true or you have a good faith belief that you own the UNIX copyrights, not SCO);
  • Novell has a privilege to publish its rival claim to parties with a common interest in the UNIX copyrights (like all Linux users, but especially all those companies being sued by SCO or suing or maybe worried about getting sued someday); and
  • SCO can't allege malice, a necessary element, given the Court's earlier Order. Remember, Your Honor, how you said it wasn't a bit clear, but we made some convincing arguments? If *you* are not sure SCO has the copyrights, and you are the judge here, how can Novell be called malicious for saying so too?


Novell Moves to Dismiss With Prejudice | 474 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Offtopic stuff here please [Novell Moves to Dismiss]
Authored by: Anonymous on Tuesday, August 10 2004 @ 04:51 PM EDT

[ Reply to This | # ]

Corrections here, please
Authored by: overshoot on Tuesday, August 10 2004 @ 04:52 PM EDT
So we can laugh at ourselves.

[ Reply to This | # ]

OT and links, please
Authored by: overshoot on Tuesday, August 10 2004 @ 04:57 PM EDT
The grill is getting hot already

[ Reply to This | # ]

Novell Moves to Dismiss
Authored by: stan ackroyd on Tuesday, August 10 2004 @ 05:02 PM EDT
Will SCO get to reply to this? That should be hilarious. I've read Novell's
motion and it is essentially unanswerable. If I were SCO's counsel, I'd just
have to throw up my arms and say 'fair cop, guv'. Guess that's why I'm not a

Ha ha ha. Oops, schadenfreude.

[ Reply to This | # ]

Authored by: overshoot on Tuesday, August 10 2004 @ 05:13 PM EDT
Please note that the declarations are introduced by:
(David Melaugh)|(Bruce Lowry), under penalty of perjury, declares the following:
and end with:
I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.
Dang. Has "on information and belief" gone out of fashion?

[ Reply to This | # ]

The worst isn't over yet...
Authored by: John M. Horn on Tuesday, August 10 2004 @ 05:15 PM EDT
While Novell moves to dismiss, it has been reported that Steve Ballmer told a
crowd of investors that Microsoft may own intellectual property in Linux and
that Microsoft would be aggressive in pursuing any such violations of its
patents or other intellectual property.

(Please note this is not a direct quote...)

I wonder if PJ may someday spawn a 'Grokart' site for contributions to research
on 'prior art' for defense against Open Source patent infringement claims...

John Horn

[ Reply to This | # ]

Rob Enderle, Laura DiDio, Bill Gates, Steve Ballmer, and Darl McBride go here
Authored by: clark_kent on Tuesday, August 10 2004 @ 05:16 PM EDT
Don't you think they read Groklaw too?

[ Reply to This | # ]

Interesting - No Summary Judgement
Authored by: Anonymous on Tuesday, August 10 2004 @ 05:24 PM EDT
Well this is interesting - even though the judge strongly hinted that Novell may
get a summary judgement (IANAL so could be the wrong term) on the copyrights not
being transferred, they haven't elected to go that route.

Why? Well I think they want to keep SCOG on the defensive in the other suits. A
summary judgement on the ownership of copyrights might provide SCOG with some
wiggle room in getting out of the other cases. After all, IBM are pressing ahead
without any significant mention of the copyright ownership issue - maybe Novell
doesn't want to upset IBM's chances in their trial?

[ Reply to This | # ]

Brilliant Move
Authored by: Anonymous on Tuesday, August 10 2004 @ 05:26 PM EDT
Simply brilliant how Novell uses the Judge own statements against him.
If he dismisses the Motion, he'll look like a complete fool to the outside world
and can forget his career.
Simply awesome.

[ Reply to This | # ]

I think the best part is...
Authored by: Jude on Tuesday, August 10 2004 @ 05:41 PM EDT
...that this case may be dead even if SCO appeals Judge Kimball's ruling against
their motion to remand and *win* the appeal.

The very fact that a federal judge thought there was an ownership issue might be
a sufficient defense against the malice requirement of Slander of Title.

Of course, IANAL, so what do I know...

[ Reply to This | # ]

Enderle's speech - The "Executive" Summary
Authored by: JeR on Tuesday, August 10 2004 @ 05:51 PM EDT

Enderle's speech - The "Executive" Summary

non-breaking space

[ Reply to This | # ]

The writing is on the wall for Microsoft...
Authored by: John M. Horn on Tuesday, August 10 2004 @ 06:01 PM EDT
I think it is abundantly clear that Microsoft is terrified, though not
petrified, of Linux. There is no other reason for Microsoft's advocates to wax
so vitriolic in their attacks upon Open Source (re: Rob Enderle and friends).

Microsoft's Martin Taylor is a serious foe of the Open Source community. He
strives to understand Linux and Open Source so that he can orchestrate it's
destruction via a persistent, coordinated assault upon the community at its most
vulnerable points.

It is incumbent upon us, the members and supporters of the Open Source
community, to remain vigilent and informed about the intentions and activities
of those who seek to crush us.

I believe that we will do those things that we need to do to enable the Open
Source community to survive and thrive. With visionary corporations such as IBM
and Novell acting in concert and harmony with the Open Source community much
progress will be made. In turn, from this community will spring many future CIOs
and CTOs that will choose the direction and vendors for the technology of

Those corporations that fail to adapt to the changing technoscape of today are
doomed to pursue the table scraps left by the thriving vendors of tomorrow.

John Horn

[ Reply to This | # ]

The SCO Group is NOT old Santa Cruze Operations
Authored by: Anonymous on Tuesday, August 10 2004 @ 06:04 PM EDT
I an not an attorney but it looks to me like Novel
made a major screw up in Novel's Memorandum
in Support of Novel Inc. Motion to Dismiss.

Reference page 8

SCO's assertion that it owns the copyright and
pattens to Unix System V, pointing out that the
asset purchase agreement entered into between
Novel and SCO in 1995 did not transfer the
rights to SCO.

The issue is that in 1995 SCO stood for Santa
Cruze Operation which had a Unix maintenance
contract with Novel in which 95% of profits to the
Santa Cruze Operations from licensing
agreements of Unix System V were transferred to
Novel. These are the rights that the Santa Cruze
Operation transferred to a company with Caldera
(1) in its name. Another company with Caldera
(2) renamed itself The SCO Group.

Point 1: Caldera (1) and Caldera (2) are most
probably different companies. No asset transfer
agreement concerning this transfer.

Point 2. No asset transfer agreement has ever
been posted that transfers assets from SCO to
Caldera (1).

Point 3. Novel did not enter into a contract with
The SCO Group in 1995 as The SCO Group did
not exist in 1995. In 1995 what is currently called
The SCO Group was either Caldera (1) or
Caldera (2).

[ Reply to This | # ]

Case is a slander of title case...
Authored by: pooky on Tuesday, August 10 2004 @ 07:34 PM EDT

Alright, I can see from the posts below this needs re-hashing AGAIN.

SCO v Novell is a slander of title lawsuit, SCO asserts that Novell slandered SCO’s title to UNIX. Like the SCO v IBM case, Novell is cutting to the heart of the matter. For SCO to even bring this argument to a jury to be argued, SCO has to have a title to slander. That means ownership and in this case it means copyright ownership.

Novell has rightly asserted to the court that SCO cannot prove they own the copyrights to UNIX because the transfer is in question. The two parties (one a party to the agreement and one a successor to the other party) have opposite views of what the APA did and did not convey to oldSCO. SCO will have to argue that in court before they can lawfully assert Novell slandered their title to UNIX.

The judge has agreed with this line of thinking stating that in his opinion it does not appear that the APA, on it’s face, constitutes a legal transfer of title to oldSCO, and the intent of the document is unclear even to him in this regard.

SCO is wriggling to keep the suit alive because a loss means this:

1) The copyright ownership is truly in question.
2) A loss may be interpreted in the AutoZone case as grounds for dismissing it because SCO does not clearly own the copyrights to UNIX as they assert in the AZ complaint.
3) Dismissal of the AZ case would mean that pretty much no one will buy another IP license from SCO. SCO publicly asserts that the AZ case is about general use of Linux, despite what the complaint ACTUALLY SAYS. A loss nonetheless would be a publicity disaster for SCO.
4)This may bring BayStar down on their heads with a lawsuit.

A dismissal with prejudice will mean the case was ruled on as a matter of law and dismissed on its merits. A dismissal on the merits means SCO doesn’t have clear title to UNIX, period.


Veni, vidi, velcro.
"I came, I saw, I stuck around."

[ Reply to This | # ]

Novell Moves to Dismiss With Prejudice
Authored by: Anonymous on Tuesday, August 10 2004 @ 07:56 PM EDT
"Novell then wisely quotes from the Judge himself. Could there ever be better authority?"

PJ, You're obviously WAY too smart to ever be a lawyer. You should try stand-up comedy, LOL

[ Reply to This | # ]

Devil's advocate: SCO's likely position
Authored by: Anonymous on Tuesday, August 10 2004 @ 08:18 PM EDT

Because most of the subject of the motion involves areas of law I haven't previously studied, this post will be more an exploration of areas for further research, rather than a definitive opinion. But peering into my magic mirror, I think I see the broad strokes of SCO's defense to this motion.

Motion to dismiss versus motion for summary judgment. Novell seems to be straining a bit to characterize their motion as a Rule 12(b)(6) motion to dismiss for failure to state a claim. They do cite some case law allowing statements referenced by a complaint to be allowed to support a motion to dismiss, but they're also citing quite a bit of evidence that wasn't referenced in the complaint. Reliance on evidence outside the complaint itself will probably result in the motion being treated as a motion for summary judgment rather than a motion to dismiss. But doing so also feeds arguments that discovery should be allowed before the judge decides on summary judgment. See Rule 12(b):
. . .

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
SCO will obviously argue that they won't have a "reasonable opportunity to present all [pertinent] material" without first taking discovery.

Novell would of course rather have the motion treated as a motion to dismiss rather than as one for summary judgment, because if treated as the former, then SCO could be barred from relying in its response on other evidence it may attempt to introduce. But I doubt they'll be successful in that regard. Judges tend to err on the side of caution on this issue and treat motions to dismiss as motions for summary judgment, thus eliminating appeals arguing that motions to dismiss should have been treated as motions for summary judgment.

Specificity of pleading. Novell comes across as a bit over-reaching on its argument that SCO didn't and can't plead sufficient facts to make out the requisite "malice" state of mind on the part of Novell. Novell cites one district court decision outside the 10th Circuit and one Utah state court case in support of its argument that "malice" has to be alleged with specific allegations to demonstrate that it exists. But let's take a closer look, because pleading requirements affect whether or not discovery and trial are necessary on that issue, requiring Novell's motion to be denied:

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
Federal Rule 9(b). (Pleading special matters.)

The rule's plain language favors SCO, not Novell. However, the case law interpreting the Federal Rules is chock full of exceptions on pleading requirements that aren't mentioned in the Rules themselves, and further research might in fact demonstrate that there's a relevant exception in the slander of title context that would support Novell. But this is an area where SCO's lawyers will be devoting some research.

By way of background to help laymen/women, it used to be that parties in federal court had to plead "ultimate facts" to support their allegations, and that requirement still applies in many state courts. But this is federal court, notwithstanding that the case was originally filed in state court and the merits of the case will be determined under state law. Sufficiency of the pleadings is a procedural requirement, so in this context must be decided under the Federal Rules.

When the Federal Rules of Civil Procedure were initially revamped and made uniform in the 1930s and 1940s, the requirement of "ultimate fact" pleading was eliminated except for "fraud or mistake." "Notice pleading" was established in its stead, the notion that you only are required to plead in sufficient detail to put an opponent "on notice" of the claims against them. Discovery rules would then allow claims and defenses to be made specific. See e.g., the example complaints in the Federal Rules Appendix of Forms.

Now in the jurisdictions that still require "ultimate fact" pleading, a motion to dismiss (formerly known as a demurrer) could be sustained if the complainant failed to allege "sufficient ultimate facts to constitute a cause of action." But note in a portion of Rule 12 quoted above, the federal counterpart allows dismissal if a complaint "fails to state a claim upon which relief can be granted." The difference is that "ultimate fact" pleading isn't required in federal court, other than the exception for "fraud and mistake" noted above in Rule 9.

Is notice pleading sufficient on the issue of 'malice?' Notwithstanding the seemingly black and white nature of the pleading requirements embodied in the present federal rules, courts found it difficult to dismiss cases in their early stages without resorting to "ultimate fact" pleading requirements. So courts began to create exceptions to the notice pleading rule, dismissing cases because a plaintiff hadn't or couldn't plead specific facts constituting a claim, almost invariably without noting that they were in effect changing the rules. And the rules haven't been amended to reflect these judicially created exceptions, so the extent to which "ultimate facts" must be pleaded in federal court is a virtual mine field, requiring careful legal research in each new area of law an attorney encounters. Novell may be right that slander of title is one of the claims that requires the facts constituting malice to be pleaded specifically, but if that were so, I'd expect Novell to have cited more and stronger authorities for that proposition.

A long series of court rulings, however, have held that "malice" need not be pleaded specifically, only generally, and that "malice" is almost invariably an issue for jury decision inappropriate for decision on a motion for dismissal or summary judgment. Example areas of law I recall include civil rights qualified immunity, First Amendment defamation cases involving public figures, and the requirement of malice as an element of punitive damage claims.

So it's important to research whether Novell is right that lack of malice can be determined on a motion to dismiss in a slander of title suit. It's a key issue, and the fact that Novell's lawyers cite only a state court decision and an out-of-jurisdiction federal district court decision in support raises a red flag. SCO's lawyers will likely be arguing that malice can be pleaded generally without alleging supporting facts, that this is a fact issue that has to be decided by a jury, that the motion should be treated as one for summary judgment, that the motion for summary judgment should be postponed for disposition after discovery is completed, and that they should be allowed to take discovery on the malice issue to explore Novell's actual state of mind.

Privilege defense. Novell has a strong argument on the privilege defense. But notice buried in a footnote on page 22 of its memorandum, Novell discusses precedents holding that the privilege also requires a finding that Novell's actions didn't constitute "malice."

The hard core of Novell's argument is that a public position that is objectively reasonable eliminates the need for inquiry into the speaker's subjective beliefs. Novell memo at pp. 24-25. However, Novell apparently has no authorities that have applied that rule in a slander of title action, so Novell may be susceptible here to a policy argument based on authorities involving non-slander of title cases.

Conclusion. It looks initially like the dispositive issues of the motion are pleading requirements for malice, and whether SCO is entitled to discovery on that issue before the judge rules on the motion to dismiss.

Discovery on "malice" in the corporate context is a license to beat up on executives and opposing in-house counsel. If SCO successfully defends this issue, look for upcoming scraps over SCO's right to depose Novell executives, to discover attorney-client communications that affected the executives' state of mind, to depose executive staff to discover statements going to the executives' state of mind, etc. And that, of course, is what Novell's lawyers are trying to forestall through the motion to dismiss.

Over-all, and without researching issues, I'd give Novell's motion some points; OTOH, SCO might be able to survive. But it's definitely a battle between form and substance, and that favors Novell.

Sorry I got so long with this; I guess I'm having trouble staying retired. ;)

[ Reply to This | # ]

Why doesn't Novell get a clue?
Authored by: darkonc on Tuesday, August 10 2004 @ 08:19 PM EDT
Perhaps I'm missing something, but it seems to me that the judge was giving Novell an opportunity to make an application for summary judgement that SCO has not, in fact, recieved the copyrights that they say Novell transferred.

Given SCO's claims, I think it's a reasonable request, and -- given the contract, I think that it's a pretty clear decision at law.

This is quite different than answering the question of whether new SCO inherited the rights to request such copyrights, or (if they inherited such rights) whether they have any good reasn to make such a request.

Honstly, I think that his "serious question" about SCOGs copyrights is essentially judgespeak for "I'd probably rule for Novell if I got the chance, but I'm not going to say so openly right now".

If Novell would pull the rug out from under SCOG, it would make life much easier in the other cases... It'd be nice if NOVELL provided that service to the community.

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Enderle seems to be...
Authored by: LarryVance on Tuesday, August 10 2004 @ 08:41 PM EDT
part of the problem instead of part of the solution. He appears to have a lot
in common with Darl. Packing heat to defend themselves. Saying that TSG does
have a case. Claiming IBM is the big bad wolf. Taking M$. Self pity.
Projection of personal failing on everybody else. IMO.

Larry Vance

[ Reply to This | # ]

Phil Albert at LinuxInsider
Authored by: Anonymous on Tuesday, August 10 2004 @ 09:59 PM EDT
The troll Daniel Wallace just trashed Phil Albert over at LinuxInsider.


He and Rob Enderle must be brothers.

GPL Defender

[ Reply to This | # ]

I hope for long delay, or Novell looses...
Authored by: kberrien on Tuesday, August 10 2004 @ 10:28 PM EDT
I know this will sound odd, or like the beginning of a troll post, but hear me
out. I in a way hope either this Novell motion fails, or at least gets drawn
out for a while... (or unruled on for a while).

I want to see IBM's 10th Counterclaim decided (in IBM's favor!) first. I think
we all want to see a court decide IBM's use/distrib of Linux (and thus
technically, but no legally everyone elses use/distrib) is clear of any SCO

I want the world to see this decided BEFORE there is a decision that the
copyrights are really disputed (and thus deluting SCO's case). I want the 10th
cc decided AS IF SCO DID OWN THE COPYRIGHTS. This is the FUD bustinging, code
truckload defusing decision that the world needs to see front page.

I'd hate to see it (10th cc) decided after a Novell victory on dismisall, when
people will say, well.. great, but mute point. Heck, from a PR standpoint, its
better for SCO to loose this case, than loose the 10th CC. I think they would
spin the 10th CC as not all that earth shaking.

[ Reply to This | # ]

Novell Moves to Dismiss With Prejudice
Authored by: Anonymous on Tuesday, August 10 2004 @ 10:43 PM EDT
LOL. They use SCO's own argument in the RedHat case against them. Nice.

[ Reply to This | # ]

Novell Moves to Dismiss With Prejudice
Authored by: Anonymous on Tuesday, August 10 2004 @ 10:49 PM EDT
Just one question - where in the motion does it make the request that the
dismissal be done with prejudice? IANAL and all that, but I can't see that in
the motion....

[ Reply to This | # ]

SCO Site
Authored by: Anonymous on Tuesday, August 10 2004 @ 10:52 PM EDT
I can get to the site, but it is having a lot of problems.
It looks like their content management system went a bit

I found the enderle keynote. It still contains all the
lovely swear words that endears him to our hearts.

[ Reply to This | # ]

Novell Moves to Dismiss With Prejudice
Authored by: jim Reiter on Wednesday, August 11 2004 @ 12:10 AM EDT
looking down the road to IBM, SCO has a major problem with
the (Old) SCO/Novell purchase agreement which has a clause
as Follows:

Buyer = Old SCO; Seller = Novell

"b) Buyer (Old SCO) shall not, and shall not have the
authority to, amend, modify or waive any right under or
assign any SVRX License without the prior written consent
of Seller (Novell). In addition, at Seller's (Novell)sole
discretion and direction, Buyer (old SCO) shall amend,
supplement, modify or waive any rights under, or shall
assign any rights to, any SVRX License to the extent so
directed in any manner or respect by Seller. In the event
that Buyer shall fail to take any such action concerning
the SVRX Licenses as required herein, Seller shall be
authorized, and hereby is granted, the rights to take any
action on Buyer's own behalf. Buyer shall not, and shall
have no right to, enter into future licenses or amendments
of the SVRX Licenses, except as may be incidentally
involved through its rights to sell and license the Assets
or the Merged Product (as such term is defined in the
proposed Operating Agreement, attached hereto as Exhibit
5.1(c)) or future versions thereof of the Merged Product."

When SCO tried to cancel IBM's SVRX license, Novell wrote
SCO telling them that they could not cancel the IBM SVRX
license, and when SCO refused to reply to Novell, Novell
wrote a letter to IBM on SCO's behalf withdrawing the
cancellation notice. The correspondence is on the web,
makes for interesting reading.

When SCOX hits $0.10/share buy a hundred shares for

[ Reply to This | # ]

Question: Dropped special damages, why?
Authored by: Anonymous on Wednesday, August 11 2004 @ 01:25 AM EDT

I'm afraid the motion to dismiss is premature and we will have to endure discovery before getting to summary judgment. Especially since the judge hinted about summary judgment in his ruling, he may be inclined to let SCO dig a little.

Anyway, what I really wonder is why did Novell drop the issue of inadequate special damages pleading? The special damages in the refiled complaint were quite lame and did not seem to me to meet the plain requirements or the guideline set by Judge Kimball in his ruling.

Did Novell decide otherwise -- special damages is now well pleaded? Does Novell want a malice ruling without giving the judge an easy way out on round #2? Can they be holding it in reserve to stay off discovery if this motion is denied as I fear in paragraph 1?

[ Reply to This | # ]

SCO ponders hike in 'Linux IP' licence fees
Authored by: Anonymous on Wednesday, August 11 2004 @ 04:43 AM EDT
They don't give up do they...,39023166,39155953,00.htm

[ Reply to This | # ]

kills the nuisance value
Authored by: Paul Shirley on Wednesday, August 11 2004 @ 06:56 AM EDT
If we assume most of SCOG's attacks are nuisance suits, designed to get a buyout
offer from IBM or licence fees from everyone else, Novells strategy is perfect.

By going for the quickest, easiest dismissal route, a route that conspicously
avoids expensive discovery, lawyer fees on argument and research and court time
Novell publicly undermine SCOG's credibility as a serious source of expense
& delay.

By settling the suit quickly Novell can go back to publicly disputing SCOG
claims that much quicker with no way for SCOG to fight back. This is a
masterstroke in the PR war that only Novell, with no long term need to destroy
SCOG, is positioned to attempt.

In a way this is throwing the FUD right back at SCOG. SCOG spread uncertainty
about ownership of Linux, Novell do the same for SCOG's products.

[ Reply to This | # ]

Tibbets eats up the stock — and I don't mean livestock
Authored by: belzecue on Wednesday, August 11 2004 @ 07:44 AM EDT
So going on on here? Ryan Tibbets, SCO's General Counsel & Corp Sec picks up 100K of shares at $4.05, or is this just an option to buy? Date exercisable of 27 July 2005, so I presume he can't sell until then? Will there even be a SCO in 2005??

[ Reply to This | # ]

Novell Moves to Dismiss With Prejudice
Authored by: urzumph on Wednesday, August 11 2004 @ 08:37 AM EDT
Is it just me, or reading the Mem. in support, did anyone feel that Novell is
seriously overusing the 'persuasive arguements' quote, like SCO overuses the
'good faith' quote. At least it's only one Mem. I guess, as opposed to a couple
of dozen times every time the subject of SCO's delay is brought up.

[ Reply to This | # ]

Where now for SCO?
Authored by: Anonymous on Wednesday, August 11 2004 @ 08:53 AM EDT
The writing's on the wall for the Slander of Title - can they switch it to a
copyright case at this late date, or will they have to start over? If so, will
they do so as a contract case at State level?

Either way, this is just the end of the beginning of SCO vs Novell. Act 1,

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Be Prepared!
Authored by: joef on Wednesday, August 11 2004 @ 09:24 AM EDT
This thread has been slashdotted!

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Now for something different.
Authored by: Anonymous on Wednesday, August 11 2004 @ 01:32 PM EDT
Okee. Do this.

Go to google image search.
Search for the world "charlatan".

I hope the first picture is as good for you as it was for me !.
If you get a result that does not seem funny in the context
here is a link to the first picture I got !.

Retep Vosnul

( just trying to put a smile upon your face !. ).

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IBM vs M$
Authored by: aaron_tx on Wednesday, August 11 2004 @ 03:52 PM EDT
I wonder if IBM is still mad about Windows and OS/2 and is looking forward to a
patent fight with Micro$oft? Since IBM develops Win32-based software (and
hence, either cross-license with or are a licensee of M$), they have access to
probably all api's and maybe even Win32 source they would know better than
anyone outside of Redmond how much patent/copyright/IP infringement M$ is
involved in.


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  • IBM vs M$ - Authored by: Anonymous on Wednesday, August 11 2004 @ 07:31 PM EDT
  • IBM vs M$ - Authored by: garbage on Wednesday, August 11 2004 @ 08:08 PM EDT
IBM vs M$
Authored by: aaron_tx on Wednesday, August 11 2004 @ 03:56 PM EDT
I wonder if IBM is still mad about Windows and OS/2 and is looking forward to a
patent fight with Micro$oft? Since IBM develops Win32-based software (and
hence, either cross-license with or are a licensee of M$), they have access to
probably all api's and maybe even Win32 source they would know better than
anyone outside of Redmond how much patent/copyright/IP infringement M$ is
involved in.


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